Customer Agreement

This page contains our Customer Agreement, which explains the terms under which we grant you access to use Octopus Cloud and Octopus Server. It also covers any orders or subscriptions you place with us. It's carefully written to be fair to you and to us, and it's been accepted by over 20,000 companies. Please note that we don't negotiate changes to our Customer Agreement.

Octopus Deploy Customer Agreement

Effective starting 1 February, 2023

This Agreement is a legal agreement between you and Octopus Deploy which sets out the terms and conditions of our supply of, and your access to, our Products. Capitalized terms have the meaning given to them in Section 19.

By (a) clicking on the “I agree” (or similar button or checkbox) that is presented to you at the time of placing an Order; (b) using or accessing our Products; or (c) otherwise indicating your acceptance (for example, by signing and returning a copy of an Order or these terms), you agree to be bound by the terms of this Agreement. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF ANY OTHER PERSON OR ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORISED TO DO SO ON BEHALF OF THAT PERSON OR ENTITY, AND A REFERENCE TO “YOU” IN THIS AGREEMENT SHALL BE A REFERENCE TO THAT PERSON OR ENTITY.

1. What this Agreement covers.

1.1. Scope. This Agreement (comprising this Customer Agreement together with our Policies and Product Terms) governs all Orders that you place with us. If there are any discrepancies or inconsistencies between:

(a)           this Customer Agreement;

(b)           any applicable Product Terms;

(c)            our Policies; and

(d)           your Order,

the document higher in the above list shall prevail unless otherwise specified.

1.1. Affiliates. Your Affiliates shall be entitled to make full use of our Products to the same extent as if they were you. You remain responsible and liable for your Affiliates’ use of our Products as if their acts or omissions were your own.

1.2. End users and representatives. You may authorize end users or representatives to access or use Products on your behalf. Your authorized users may be required to accept additional terms as between us and them (for example, in relation to confidentiality or acceptable usage) in order for your authorized users to access or use the Products. You remain responsible or liable for your authorized users’ access and use of our Products as if their acts or omissions were your own.

2.  Placing and managing Orders.

2.1. Account administration. You must register an Account with us at our website in order to place and manage your Order(s). You must keep your Account information accurate, complete, and up to date. We will send notices, statements, and other information to you by email or through your Account. You are responsible for keeping the login details for your account secure and confidential and for preventing any unauthorized access to your Account. You are responsible for all actions taken through your Account, including all Order(s) made, modified, or managed, through your Account. We are not responsible for any unauthorized access or use of your Account or any acts or omissions of any persons whom you have authorized to access your Account on your behalf.

2.2. Placing Orders. An Order will be created by you through our website, or by requesting an invoice from us. Your Order will provide information including:

(a)           the name of the Product(s) you are purchasing or licensing;

(b)           the fees payable for the Product and the currency, means, and time for payment;

(c)            the scope of your permitted use; and

(d)           the Order Term. If the Order is silent as to the Order Term, the Order Term shall be as specified in the applicable Product Terms and Policies.

An Order is not binding on either of us until we accept the Order in and provide you access to the Product(s) specified in the Order. For the avoidance of doubt, Your Order is subject to the version of this Agreement in effect at the time of the Order.

2.3. Payments. You must pay for your Order at the time of placing or renewing your Order unless otherwise agreed. Payments shall be in the current specified in the Order, or, if not specified, in United States Dollars. You consent to and accept responsibility for all related charges (including, in the case of renewals, recurring charges) to your applicable payment method without further authorization from you and without further notice unless required by law.

2.4. Taxes. Unless otherwise specified by us, the fees payable under each Order or any quotation or invoice are net and do not include any taxes, duties, excises, or other payments. We may charge you an amount equal to the amount of such taxes or duties in addition to any fees owed under the Order. If your relevant tax authority requires you to withhold taxes, you remain liable to pay us the full amount listed on the Order or any invoice issued thereunder, grossed up as if the amount to be withheld was an amount payable in addition to the amount payable net to us.

2.5. Cooling-off period. You may terminate your initial Order (i.e. the first order you place with us for a Product, excluding any renewals) within thirty (30) days of placing your Order. If you terminate your initial Order within this period, we will provide you a full refund for that Order and your right to continue using the Products under that Order shall immediately cease. For the absence of doubt, the cooling-off period shall apply only once to any customer, i.e. if you terminate your initial Order under this Section 2.5 and later place a new Order, the cooling-off period shall not apply to that new Order or any other future Orders.

2.6. Renewals. Each Order will automatically renew for successive Order Terms unless otherwise specified in your Order or you configure your Account to not automatically renew the Order. If the preceding Order Term was twelve months or more, the default renewal term is twelve (12) months, otherwise, the default renewal term is monthly.  Subject to any discounts or credits which we may offer, all renewals will be at our standard pricing as at the date of renewal and are subject to change. All renewals shall be on our then-current terms in accordance with Section 15.

2.7. Termination without cause. Either party may terminate an Order without cause on sixty (60) days’ notice in writing (or such other period specified in any applicable Product Terms and Policies, or in the Order).

2.8. Termination for cause. Either party may terminate an Order with cause by notice in writing if the other party breaches this Agreement:

(a)           with immediate effect if the breach cannot be cured; or

(b)           if the breach can be cured, and the breaching party fails to cure the breach within thirty (30) days of receiving notice from the terminating party specifying the nature of the breach.

Termination of an individual Order shall not operate to terminate any other outstanding Orders unless the other order is incapable of being performed due to the termination of the breached Order.

2.9. Effect of termination or expiry. Upon termination or expiry of an Order, your right to continue using the Products under that Order shall cease save as otherwise specified in any Product Terms. A termination of this Agreement by either party, except for a termination by you during the cooling off period under Section 2.5, will not entitle you to any refund, pro rata or otherwise, or credit for affected Orders. If the Order included any discount or credit, on termination you will lose any future entitlement to that discount or credit.

2.10. Survival. The following Sections will expressly survive any termination or expiration of an Order: 2.9 (Effect of termination or expiry), 3 (Resellers), 4.5 (Liability of Your Data), 5 (Confidentiality), 6 (Warranty), 7 (Liability), 8 (IP Indemnification by Octopus Deploy) (solely with respect to claims arising from your use of our software during the Order Term), 16 (Entire Agreement), 18 (Law and Jurisdiction), 19 (Definitions), and 20 (Interpretation). The foregoing does not limit the survival of any Section which reasonably survives termination or expiration of an Order by implication or if necessary to give effect to any of the foregoing sections.

3. Resellers.

This Section 3 applies if you have purchased any Products through a Reseller.

3.1. ​Your Reseller shall place your Order with us (including making any payments or receiving any refunds), and we will supply the Products in accordance with that Order. The accuracy and completeness of that Order is solely a matter between you and your Reseller. You acknowledge and agree that the Reseller's pricing for the Products may be different to our own.

3.2. You are and shall remain liable for any act or omission by your Reseller (including a failure to pay any amount as and when due or any misuse of any Products). Our performance of any obligation under this Agreement through or on request of your Reseller (including any refund we may pay to the Reseller on your behalf) shall be deemed to have been performed for you. For the purposes of Section 7.4 (Liability Cap), any payment made by your Reseller shall be deemed to be made by you.

3.3. Save as otherwise set out in this Section 3, your right to access and use, and our obligations to provide you, the Products, are solely on the terms of this Agreement. The terms of your agreement with your Reseller shall govern your relationship with them and we are not party to or have any obligation or liability under that agreement. Resellers are not authorized to make any modifications to this Agreement or to make any representation on our behalf. Any such modification or representation shall be void and of no effect.

3.4. If your agreement with your Reseller ends for any reason, and you continue to use our Products, these Products shall be supplied on the terms of this Agreement. You shall be solely and directly liable for any ongoing or future obligations previously assumed by the Reseller on your behalf including paying any renewal or other prices at our then-current pricing.

4. Your Data

4.1. Ownership of Your Data. You are responsible for the accuracy and completeness of Your Data. You will retain all right, title and interest in and to Your Data. Subject to the terms of this Agreement, you grant us a worldwide, non-exclusive, royalty-free right to collect, use, transfer and store Your Data solely for the purposes of providing any Product including responding to any support requests.

4.2. Nature of Your Data. You must ensure that Your Data is at all times compliant with our Policies and all appropriate laws and regulations. You warrant that you have the rights and permissions to provide Your Data to us, and that your transfer of Your Data to use does not violate any laws, regulations or the rights of third parties.

4.3. Personally Identifiable Information. You will not submit to us any personally identifiable information (except as necessary for your authorised users to use and access a Product). You will not submit to us any patient, medical or other protected health information regulated by any relevant laws in any country. You shall pay any damages and costs awarded against us in connection with any claim brought by a person whose personally identifiable information you submit to us (except for personal information necessary for your authorised users to use and access a Product).

4.4. Security. We implement and maintain security measures to help protect Your Data from security attacks. However, you acknowledge and agree that as a consequence of the inherent nature of electronic communications networks, Your Data will often be transported over networks that are not owned or operated by us, and that we are not responsible for any of Your Data that is lost, intercepted, altered or stored across such networks, except to the extent caused by our negligence or intentional misconduct. You acknowledge that we are unable to guarantee complete security or confidentiality of Your Data or guarantee that third parties will never be able to defeat our security measures or those of our third-party service providers.

4.5. Liability. For the avoidance of all doubt, Octopus Deploy assumes no responsibility or liability for Your Data other than described in this Section 4, and you shall be solely responsible for Your Data and the consequences of you using, storing, disclosing or transmitting it. We have no obligation to monitor any of Your Data uploaded to the service.

4.6. Deletion of Your Data. We may remove or delete Your Data 90 days after the termination or expiry of your relevant Order(s), or upon your request.

5. Confidentiality

Either party (as “Recipient”) may receive from the other party (as “Discloser”) Confidential Information of the Discloser. This may happen in various ways, including, but not limited to, when these are uploaded or shared through the Products or exchanged for the purpose of supplying the Products. The Recipient agrees:

(a)           that all Confidential Information shall be and shall remain the Discloser’s exclusive property;

(b)           to only disclose the Confidential Information: (i) to the Recipient’s authorized employees, contractors, and agents, and those of its Affiliates, who have a need to know such information in the performance of their work; or (ii) as necessary to explore or consummate an investment into the Recipient, or a reorganization, merger, or acquisition involving the Recipient;

(c)            to inform all such secondary recipients engaged in handling the Discloser’s Confidential Information of the confidential character of the information;

(d)           to keep the Confidential Information confidential;

(e)           not to copy, publish, or disclose Confidential Information to others or authorize others to copy, publish, disclose Confidential Information without the Discloser’s written approval;

(f)             at the Discloser’s option, promptly return to the Discloser or destroy any copies of the Confidential Information upon request and in any event following expiry or termination of the Order(s) to which the Confidential Information pertains. However, the Recipient may keep such copies of the Confidential Information as it may be required by law, or as are saved in its ordinary business backups and archives, provided that those copies remain confidential in accordance with this Section 5;

(g)           to use such information solely for purposes of accepting fulfilling work or services performed hereunder, and for other purposes only upon such terms as may be agreed upon between us in writing; and

(h)           that, in the event any of the information is required to be produced pursuant to a subpoena, court order, valid legal or administrative process, or other operation of law, to the extent permitted by the foregoing:

(i)             the Recipient shall notify the Discloser of such potential disclosure in order that the Discloser may take appropriate action at its own expense to limit or prevent such disclosure; and

(ii)           furnish only that portion of the Confidential Information that has been legally compelled; and

(i)             the unauthorised disclosure of Confidential Information may cause harm or loss to the Recipient for which damages would be an inadequate remedy and, accordingly, the Recipient may take action for injunctive relief against any unauthorised disclosure without burden of proof of actual or anticipated monetary loss or damage.

6. Warranty

6.1. General Warranties. Each of us warrants that we have the legal power and authority to enter into and perform this Agreement. We each further represent and warrant that our performance of this Agreement shall not breach any law or other obligation owed to any third party.

6.2. Product Warranty. We warrant that, during the Order Term, the Products supplied under the Order will, when properly used, perform substantially as described in their Documentation, provided that the Product:

(a)           is properly used on the computer and with the operating system and software environment for which it was designed; and (b)           is used in accordance with our Documentation.

We do not warrant that the Products are error free, will operate in an uninterrupted manner, will not damage or interfere with your computer operating system and will not damage or interfere with your business or the business of third parties.

6.3. Virus Warranty. We represent and warrant that we will take reasonable commercial efforts to ensure that the Products, in the form and when provided to you, will be free of any viruses, malware, trojans or other harmful code. For any breach of the foregoing warranty, your sole and exclusive remedy, and our sole obligation, is to fix or replace the Products promptly upon written notice.

6.4. Remedies during the Order Term. If, during the Order Term, a Product fails to perform as described due to a defect or fault (that is not the result of you having modified the Product without our prior knowledge and authorization or having used it in contravention of the terms of this Agreement or outside its ordinary operating requirements as we have described), we will, at our sole option, and as your sole remedy, repair or replace the Product, provided that you:

(a)           notify us in writing of the defect or fault in the Product during the Order Term; and

(b)           make available all the information that may be necessary to assist us in resolving the defect or fault, including sufficient information to enable us to recreate the defect or fault.

6.5. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6 OR IN ANY PRODUCT TERMS (AND THEN ONLY IN RESPECT OF THE PRODUCT TO WHICH THOSE TERMS APPLY), ALL PRODUCTS ARE PROVIDED “AS-IS”, AND OCTOPUS DEPLOY AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. OCTOPUS DEPLOY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF OCTOPUS DEPLOY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER OCTOPUS DEPLOY NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCT WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCT WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.3 (VIRUS WARRANTY), THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU MAY HAVE OTHER STATUTORY RIGHTS, IN WHICH CASE: (F) THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW; (G) YOUR ENTITLEMENT TO RELIEF IS LIMITED TO THOSE FORMS OF RELIEF REQUIRED BY STATUTE; AND (H) TO THE EXTENT PERMITTED BY LAW, THE FORM OF ANY RELIEF SHALL BE AT OUR DISCRETION.

7. Liability

7.1.EXCLUSIONS TO LIABILITY. NEITHER PARTY NOR ITS SUPPLIERS OR AFFILIATES WILL HAVE ANY LIABILITY (WHETHER IN CONTRACT, TORT, STATUTE, EQUITY, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR ANY LOSS OF PROFITS, BUSINESS, CONTRACTS, ANTICIPATED SAVINGS, GOODWILL, REVENUE, HARDWARE, SOFTWARE, DATA, OR ANY OTHER INDIRECT, SPECIAL, OR CONSEQUENTIAL LOSS WHATSOEVER, EVEN IF THE PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OR OUGHT OTHERWISE REASONABLY BE AWARE OF THE POSSIBILITY OF SUCH LOSS.

7.2.Your Representations. You acknowledge and agree that:

(a)           the Products have not been developed to meet your individual requirements;

(b)           it is your responsibility to ensure that the facilities and functions of the Products meets your requirements;

(c)            you have made your own independent enquiries and have satisfied yourself of the nature and adequacy of our Products for the purpose for which you have obtained the Products;

(d)           the existence of any minor errors shall not constitute a breach of this Agreement; and

(e)           the provisions of Sections 6 (Warranty), 7 (Liability), and 8 (IP Indemnification by Octopus Deploy) are reasonable and reflected in the price, which would be much higher without those provisions, and you accept such risk.

7.3. Restrictions. Except as otherwise permitted in this Agreement, or by us in writing, you will not:

(a)           intentionally use any Product in any way that could damage our reputation;

(b)           in any way that does not comply with the Documentation; or

(c)            rent, lease, sub-license, loan, translate, merge, adapt, vary or modify any Product, without our express written consent.

7.4. Liability Cap. TO THE EXTENT PERMITTED BY LAW, OUR MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE), UNDER OR IN CONNECTION WITH ANY ORDER IS LIMITED TO THE AMOUNT PAID BY YOU AND RECEIVED BY OCTOPUS DEPLOY UNDER THAT ORDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.

8. IP Ownership; IP Indemnification by Octopus Deploy

8.1. Except as specified otherwise in an Order or Product Terms, we will retain all right, title, and interest in and to all Intellectual Property we own before the Effective Date, or which is developed during an Order Term or otherwise in connection with this Agreement. You may not use, modify, copy, distribute, reverse engineer or otherwise attempt to discover the source code or other components of, or otherwise exploit in any way any of our Intellectual Property unless permitted under this Agreement or any applicable Product Terms or Order.

8.2. If any claim is brought, or you reasonably anticipate that a claim may be brought, against you alleging that your use of the Intellectual Property associated with the Products infringes a patent right granted in the United States, United Kingdom, Australia or a member nation of the European Union or a copyright registered in such a jurisdiction (a “claim”):

(a)           you shall promptly provide us written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice);

(b)           the two of us shall consult together on an appropriate course of action and shall seek to minimize the effect of any claim on each other’s businesses;

(c)           we shall have the right, but not the obligation, to take control of all negotiations and litigation arising out of the claim;

(d)            we will pay any damages and costs awarded against you in connection with any claim, however we are not and you agree not to hold us responsible or liable for any damages, costs, or expenses suffered or incurred by or awarded against you:

(i)             prior to your providing notice of the claim of under Section 8.2(a);

(ii)           arising out of any act or omission by you or any of your Affiliates in respect of the claim without our prior and express written consent, including any admission or concession; or

(iii)         to the extent that any act or omission by you or any of your Affiliates in the course of your or their use of the Product caused or contributed to the infringement of the rights of the third party;

(e)           we shall have the right, at our sole choice, either:

(i)             to negotiate terms for continued use by you of the claimed infringing Product;

(ii)           amend the Product to make it non-infringing; or

(iii)         terminate all affected Orders with immediate effect and in such event, we shall refund to you the purchase price that you paid and any renewal fees pro rated from the date of termination of this Agreement to the date which, but for the Order’s early termination, would have been the end of the Order Term,

(f)           our indemnification obligations in this Section 8 DO NOT APPLY if:

(i)             the total aggregate fees received by Octopus Deploy from you, under any Orders, in the twelve (12) month period immediately preceding the claim, is less than USD $50,000; or

(ii)           you settle or make any admissions with respect to a claim without our prior written consent.

8.3.        THIS SECTION 8 STATES OUR SOLE LIABILITY AND OBLIGATIONS AND IS YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCTS SUPPLIED BY OCTOPUS DEPLOY UNDER THIS AGREEMENT.

9. Transfer of Rights and Obligations

9.1. You may not assign or transfer this Agreement without our prior written consent. As an exception to the foregoing, you may assign this Agreement in its entirety (including all Orders) to your successor resulting from your merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under this Agreement (including liability for past performance). Any attempt by you to transfer or assign this Agreement except as expressly authorized above will be null and void.

9.2. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. We may also permit our affiliates, agents and contractors to exercise our rights or perform our obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement. Subject to the foregoing, this Agreement will inure to the parties’ permitted successors and assigns.

10. Export

You represent and warrant that you are not in violation of and will not violate any export control laws, regulations or directives in the United States, Australia, the United Kingdom, or in your own country or region (if applicable) by entering into or in the performance of your rights or obligations under this Agreement.

11. Publicity

We may identify you as a customer in our promotional materials. We will promptly stop doing so upon your request via email sent to sales@octopus.com.

12. Notices

Any notice under this Agreement must be given in writing.

We may provide notice to you via email. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Our notices to you will be deemed given upon the first business day after we send it.

You may provide notice to us:

(a)           by post to: Octopus Deploy Pty. Ltd., Level 4, 199 Grey St, South Brisbane, QLD 4101, Australia. Such notice will be deemed given upon our receipt; or

(b)           by email to: legal@octopus.com. Such notice will be deemed given upon our receipt or, if that is not between 9am and 5pm on a business day, the first business day following our receipt.

13. Waiver

Either party’s failure to insist upon strict performance of any obligations under this Agreement, or the failure to exercise any of the rights or remedies to which either party is entitled under this Agreement, does not constitute a waiver of such rights or remedies and shall not relieve either party from compliance with such obligations.

Our waiver of any default shall not constitute a waiver of any subsequent default.

A waiver of any of these terms and conditions shall not be effective unless it is expressly stated to be a waiver and is communicated to the other party in writing.

14. Severability

If any of the terms of this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

15. Changes to this Agreement

15.1. Notice for changes. We may modify the terms and conditions of this Agreement from time to time. Notice of any modifications may be given to you by email or other correspondence, via the Product, or on our website. Together with notice, we will specify the effective date of the modifications.

15.2. Effective Date of Changes. If we make modifications to this Agreement, the modifications will take effect at the next renewal of your Order. In some cases – for example, to address compliance with Laws, or as necessary for new features – we may give notice that such modifications shall become effective during your then-current Order Term. In any event, for the absence of doubt, this Agreement, as modified, shall supersede and replace all prior agreements between us. If the effective date of such modifications is during your then-current Order Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we shall provide a refund pro rata for the balance of the Order Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications.

16. Entire Agreement

This Agreement constitutes the whole of the agreement between us with respect to its subject matter. You agree that you have not relied on any statement, representation, assurance or warranty made by any person (including a third party) in entering into this Agreement. This Agreement supersedes all prior or contemporaneous oral or written communications, proposals and representations between us with respect to the Products or any other subject matter covered by this Agreement.

17. Force Majeure

Neither party is responsible or liable for any omission or delay under this Agreement where the omission or delay is caused by an event beyond the reasonable control of any party, including, but not limited to, act of God, natural disaster, war or invasion, terrorism or act of a public enemy, strikes and industrial disputes, embargo, prohibition, confiscation, act of government authority, or failure of telecommunications or data networks or services.

18. Law and Jurisdiction

Where either party may have a dispute or claim against the other party, each party:

(a)           ​agrees that the Agreement shall be interpreted in accordance with the applicable laws of the State of California, USA, without reference to its conflict of laws principles from time to time;

(b)           ​submits to the exclusive jurisdiction and venue of San Francisco, California, USA, and courts of appellate jurisdiction; and

(c)            ​consents to the enforcement of any judgment of the courts of San Francisco, California, USA (and appellate courts) in any other jurisdiction.

19. Definitions

In this Agreement, unless the context requires otherwise:

Account means your account on our website used to place Orders and manage your access to and use of the Products we have supplied you.

Agreement means this Customer Agreement including any Product Terms and Policies.

Affiliate means any body corporate, unincorporated association, or partnership, which directly or indirectly, (a) owns or controls, (b) is owned or is controlled by, or (c) is under common ownership or control with a party, where control means the power to direct the entity’s management or affairs, and ownership means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.

Confidential Information means the proprietary and confidential information of a party and / or its Affiliates including, but not limited to, documents, data, technical information, methods and processes, computer programs and scripts, source code, reports, manuals, databases, and data. In your case, your Confidential Information includes Your Data. Confidential Information excludes information which:

(a)           was known to the Recipient before disclosure as evidenced by bona fide written documents;

(b)           is or becomes publicly known through no wrongful act of the Recipient;

(c)            is independently developed by the Recipient; or

(d)           is disclosed to the Recipient by a third party without breach of any obligations of confidentiality.

Discloser means a party disclosing Confidential Information.

Documentation means our Product documentation published on our website, through the Product, or otherwise supplied to you from time to time.

Intellectual Property means all copyright, patent rights and rights and inventions, trademarks, rights in databases, Confidential Information, and other intellectual property rights, however, described, anywhere in the world.

Order means an order created in accordance with Section 2.2.

Order Term means the term during which we will supply and you may use the Products specified in an Order.

Policies means our Privacy Policy, our Acceptable Use Policy, and other policies we may publish from time to time. We may update our Policies from time to time in our sole discretion.

Products means our application software, cloud services, professional services, support services, and any other goods, products, or services, that we may offer on the terms of this Agreement from time to time.

Product Terms means any terms or policies specific to our supply of a particular Product or which otherwise govern particular requirements of your or our performance of this Agreement, including the Octopus Server Terms attached hereto, the Octopus Cloud Terms attached hereto, and the Professional Services Terms attached hereto.  We may update our Policies from time to time in our sole discretion, in accordance with Section 15.

Recipient means a party receiving Confidential Information.

Reseller means one of our authorised channel partners or resellers.

you means the person, corporation, partnership, or other entity, entering into this Agreement to procure Products from us.

Your Data means any data, applications, configuration settings, content, code, images or material of any type that you upload, submit or otherwise provide us (including via our Products) for any purpose.

We, our, us, or Octopus Deploy, means Octopus Deploy Pty Ltd ABN 69 160 339 186, an Australian company.

20. Interpretation

In this Agreement, unless the context otherwise requires:

20.1. A reference to the singular includes the plural and the plural includes the singular.

20.2. A reference to any contract (including this Agreement) or other instrument includes any variation or replacement of it and as it may be assigned or novated.

20.3. A reference to a law includes subordinate legislation (including regulations) and other instruments under it and any amendment or replacement of any of them.

20.4. A reference to a person or entity includes an individual, a firm, a body corporate, a trust, an unincorporated association or an authority.

20.5. A reference to a person includes their legal personal representatives (including executors), administrators, successors, substitutes (including by way of novation) and permitted assigns.

20.6. A reference to a day or a month means a calendar day or calendar month.

20.7. No party enters into this Agreement as agent for any other person (or otherwise on their behalf or for their benefit).

20.8. The meaning of any general language is not restricted by any accompanying example, and the words “includes”, “including”, “such as”, “for example” or similar words are not words of limitation.

20.9. No part of this Agreement shall be construed against a party merely because the party caused or contributed to the inclusion of that part in this Agreement.

20.10. Headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation.

20.11. Where there are two or more persons in a party each are bound jointly and severally.

Effective starting 1 February 2023

Your use of the Octopus Server application software is subject to our Customer Agreement together with these Terms.

1. Grant of License. We grant you a worldwide, non-exclusive, fully paid, non-transferable license to install and use Octopus Server for your own business purposes during the Order Term. You may only use Octopus Server in accordance with its Documentation and as specified under the Order.

2. License Delivery. To activate and use the Software, you will be required to provide a license key. License keys will be delivered electronically to your Account and via email when payment has been received as per your Order.

3. Term of License. Your license to use the Software is granted only for the Order Term (as renewed in accordance with the Customer Agreement).

4. Target Limits and Billing. The fees payable for your continued license to Octopus Server shall be calculated:

(a)           based on a fixed number of maximum Targets that you can deploy to; or,

(b)           with variable billing, based on the number of Targets actually deployed to by the end of the billing period,

as specified when placing or renewing your Order.

If you choose option (b), you acknowledge that your bill may vary each billing period, subject to any increase or decrease by you of the number of Targets in that billing period. To avoid any unpleasant surprises, you can limit the maximum number of targets by configuring a cap in your Octopus Account.

5. Expiry. Upon termination or expiry of the Order Term, plus a 60-day grace period, Octopus Server functionality may be limited or terminated and you may not be able to use Octopus Server to deploy applications or at all.

6. Support, Maintenance and New Releases. During the Order Term you will have access, free of charge, to all updates, upgrades, new releases and patches for Octopus Server that we release during the Order Term, along with technical support in accordance with our standard practices. You acknowledge and agree that:

(a)           we may, but are under no obligation to, release any update, upgrade or patch at any time or for any reason;

(b)           certain features may be offered on a trial, temporary, or beta basis, and the continued availability of any particular feature is not guaranteed; and

(c)            updates, upgrades, and patches could cause disruption to services, for some features to not work as they previously did, or other interruptions.

You must promptly install any updates, upgrades, or patches. If an update, upgrade, or patch is made generally available to Octopus Server users free of charge, any Octopus Server Products that are not updated, upgraded, or patched within three (3) days of those updates, upgrades, or patches being made generally available will not benefit from any warranties or indemnities under these Terms or the Customer Agreement until they are installed.  

7. Third Party Code and Open Source Libraries Used. Octopus Server includes code and libraries licensed to us by third parties, including open source software. To the extent applicable, we shall identify open source software included in Octopus Server in or through Octopus Server itself, or on a page in our Documentation. Some of these licenses require us to provide the open source software to you on the terms of the open source license. In that case, the terms of the open source license will apply, and you will have the rights granted in such licenses to the open source software itself, such as access to source code, right to make modifications, and right to reverse engineer. Notwithstanding the foregoing, if you are using Octopus Server in the form provided to you, in accordance with your permitted scope of use, with no distribution of software to third parties, then none of these open source licenses impose any obligations on you beyond what is stated in the Agreement.

8. Definitions

Any defined words not defined in this Section have the meaning given to them in the Customer Agreement. In these Terms, unless the context requires otherwise:

Octopus Server means our Octopus Server application software.

Target means a destination, machine or service, to which actions may be directed towards, as described in our documentation from time to time.

Terms means these Octopus Server Terms.

Effective starting 1 February 2023

Your use of Octopus Cloud is subject to our Customer Agreement together with these Terms.

1. Access to Cloud Services. We grant you a non-exclusive right to access and use Octopus Cloud for your own business purposes during the Order Term. You may only use Octopus Cloud in accordance with its Documentation and as specified under the Order.

2. Nature of Octopus Cloud. You acknowledge that Octopus Cloud is an online, subscription-based service hosted and managed by us, the features of which may change from time to time.

3. Term of access. Your access to Octopus Cloud shall continue for the Order Term (as renewed in accordance with the Customer Agreement).

4. Target Limits and Billing. The fees payable for your continued access to Octopus Cloud shall be calculated:

(a)           based on a fixed number of maximum Targets that you can deploy to; or,

(b)           with variable billing, based on the number of Targets actually deployed to by the end of the billing period,

as specified when placing or renewing your Order.

If you choose option (b), you acknowledge that your bill may vary each billing period, subject to any increase or decrease by you of the number of Targets in that billing period. To avoid any unpleasant surprises, you can limit the maximum number of targets by configuring a cap in your Octopus Account.

5. Fair Usage. Your usage of Octopus Cloud is governed by our Acceptable Usage Policy.

6. Support, Maintenance, and New Releases. Octopus Cloud is provided as an ongoing software-as-a-service. During the Order Term we may update, upgrade, and patch, Octopus Cloud, from time to time. You acknowledge and agree that:

(a)           we may, but are under no obligation to, release any update, upgrade or patch at any time or for any reason;

(b)           certain features may be offered on a trial, temporary, or beta basis, and the continued availability of any particular feature is not guaranteed; and

(c)            updates, upgrades, and patches could cause disruption to services, for some features to not work as they previously did, or other interruptions.

7. Termination, removal and suspension. We may remove Your Data from Octopus Cloud, or suspend your access to Octopus Cloud, if we deem such action necessary based on your violation of our Customer Agreement, these Terms, any other agreements or terms between us, or our Acceptable Use Policy. We will provide thirty (30) days’ notice and provide reasonable opportunity for you to correct your breach prior to removing Your Data, but we may also suspend your access immediately without notice if we deem it necessary to protect Octopus Cloud, security of other customers or to comply with any law or regulation. We have no liability to you for removing or deleting Your Data from or suspending your access to any Cloud Services under this Section.

8. Static IP Addresses.

Your Order may include a static IP address (“Static IP”). We may on rare occasions need to change the Static IP you have been provided. In such cases we will do our best to give you at least thirty (30) days’ notice so you can prepare for the change.

9. Definitions

Any defined words not defined in this Section have the meaning given to them in the Customer Agreement. In these Terms, unless the context requires otherwise:

Octopus Cloud means our Octopus Cloud service.

Target means a destination, machine or service, to which actions may be directed towards, as described in our documentation from time to time.

Terms means these Octopus Cloud Terms.

Effective starting 1 February 2023

Our performance and your receipt of Professional Services is subject to our Customer Agreement together with these Terms.

1. Purchasing Professional Services.

1.1. Performance. We shall perform the Professional Services as set forth in our Proposal.

1.2. Restrictions. Except as otherwise permitted in your Proposal, or by us in writing, you will not:

(a)           do anything or cause anything to be done in relation to our Professional Services that could damage our reputation; or

(b)           obtain our Professional Services for the purpose of sub-contracting or reselling our Professional Services (whether on their own or together with your own additional goods or services).

1.3. Refund. If you, acting reasonably, are dissatisfied with our provision of any of the Professional Services, you may notify us in writing within 30 days of the Services being completed, and we (at our discretion, acting reasonably) will determine an appropriate refund of the Fees paid for those Professional Services or other remedy.

2. Variations.

2.1. Variation requests. You may request to vary the Proposal through your Account or by sending an email to sales@octopus.com. We will contact you in writing via the contact details that you have provided us to, at our option:

(a)           accept the Variation and notify you of any change to the Fees or timeline as a result of the Variation;

(b)           refuse the Variation; or

(c)            refuse the Variation and propose an alternative Variation which you may accept or refuse by written reply to sales@octopus.com.

Upon our mutual acceptance of a Variation, the Variation becomes part of the Proposal upon the date agreed in the Variation, or if no date is agreed, upon the date it is accepted. In the event of any inconsistency between a Variation and the original Proposal, the Variation shall prevail on and from its effective date.

2.2. Fee reductions. If an agreed Variation results in a reduction in Professional Services, the Fees shall be reduced as set out in the Variation, or, if not set out in the Variation, as we calculate proportionally to the reduction in Professional Services. We may recover from you our reasonable demobilisation costs or expenses incurred as a result of the reduction in Professional Services. If you have paid the Fees in advance, we shall, at our option, refund you the balance or provide you a credit towards any other amounts payable by you to us (under this Agreement or otherwise).

2.3. Fee increases. If an agreed Variation results in an increase in Professional Services, or results in new Professional Services being provided, you shall be liable to pay any additional Fees in the amounts and at the times set out in the Variation, or, if not set out in the Variation, as we calculate according to our then-current standard fees for those Professional Services and payable upon demand.

3. Intellectual Property

3.1. Octopus Created IP. All Octopus Created IP belongs to us. We grant you, upon full and final payment of all fees or other monies owed to us under your Order, a worldwide license to use, copy, modify, and deal with, Octopus Created IP, solely so that you may have the benefit of the Professional Services. This license expressly excludes the right to independently sell or commercialise any Octopus Created IP. For the absence of doubt, Octopus Created IP is our Confidential Information. You may not modify, copy, or reverse engineer or otherwise attempt to discover the source code or other components of any Octopus Created IP without our express written permission.

3.2. Your IP. You retain all Intellectual Property in Your IP. You grant us a worldwide, royalty-free license to use, copy, modify, and otherwise deal with Your IP, so that we can provide the Professional Services.

4. Term. Unless otherwise specified in the Proposal, the Order Term commences on the Kick-Off Date and expires 90 days after the Kick-Off Date unless terminated earlier in accordance with these Terms and the Customer Agreement.

5. Warranties. We warrant that the Professional Services we provide to you will be as described in the Proposal. We do not warrant any particular result or outcome of the Professional Services, including, without limitation, that the Professional Services we provide to you will fix, solve, remedy, alleviate, improve or inform any problem or issue you may have.

6. Definitions. Any defined words not defined in this Section have the meaning given to them in the Customer Agreement. In these Terms, unless the context requires otherwise:

Intellectual Property means all copyright, patent rights and rights and inventions, trademarks, rights in databases, Confidential Information, and other intellectual property rights, however, described, anywhere in the world.

Kick-Off Date means the date specified in the Proposal for the initial meeting to discuss the performance of the Professional Services, or the date upon which we commence performing the Professional Services, whichever is earlier.

Octopus Created IP means any Intellectual Property created by us in the course or as a result of performing the Professional Services.

Professional Services means the technical, support, or other professional services set out in the Proposal.

Proposal means your Order and associated documents together setting out the Professional Services which we shall perform for you.

Terms means these Professional Services Terms.

Variation means a variation to the Proposal in accordance with Section 2.

Your IP means any Intellectual Property in any Confidential Information or other materials that you provide us.